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Judge says midterm legislative furloughs, COLA suspensions are unconstitutional

Monday, Jul 8, 2019

[Bumped up from last week for visibility, comments opened for discussion and updated below.]

* From the legislative article of the Illinois Constitution

A member shall receive a salary and allowances as provided by law, but changes in the salary of a member shall not take effect during the term for which he has been elected.

People have long argued that the legislative furloughs (required unpaid days) approved by the General Assembly in years past and the legislature’s nearly annual ritual vote to deny themselves statutory cost of living increases (except this year) both violated that constitutional provision forbidding salary changes during their terms in office.

* Democratic Sen. Michael Noland filed suit in 2017 to overturn the statutes ordering the furloughs and denying the COLAs. He was joined in 2018 by Sen. James Clayborne. Neither man is currently serving in the General Assembly.

Cook County Judge Franklin Valderrama sided with Noland and Clayborne yesterday on the constitutional issue. Click here to read the opinion granting partial summary judgement and Valderrama’s contention that there is “no genuine issue of material fact that the statutes are facially unconstitutional.”

Valderrama seemed to leave unresolved the question about whether the comptroller should be ordered to pay the money owed. A status hearing has been set for August.

* From Comptroller Mendoza…

In a complex and unfortunate ruling this week, a judge said former Senator Mike Noland can proceed with his disgraceful and selfish attempt to vacuum up taxpayer money he voted repeatedly not to accept.

I strongly oppose Noland’s shameless money-grab and will fight it, either through an appeal, or in this court as the remaining counts proceed. We will work with Attorney General Kwame Raoul’s office to review this week’s ruling and our legal options.

Noland’s case perfectly illustrates why voters don’t trust politicians. His legislative pension, combined with his new judicial salary and pension, should more than suffice. This is another sad week for Illinois taxpayers.

…Adding… Tribune

Noland originally filed the lawsuit in 2017, seeking back pay for himself and “all others impacted” by the eight bills lawmakers passed to give up the annual cost-of-living raises they are automatically granted under state law. The lawsuit, which Clayborne joined as a plaintiff last year, also takes issue with unpaid furlough days lawmakers approved for themselves each year from 2009 through 2013.

The judge did not order Mendoza to issue checks to anyone, and he scheduled another hearing in the case for Aug. 7.

Noland, a Kane County judge who served in the state Senate from 2007 through 2017, and Clayborne, an attorney who served from 1995 until this year, issued a written statement Thursday saying they were pleased with the outcome.

“Just as Illinois courts held that the Illinois Constitution prohibits using the salaries of judges and legislators as a political football by the Governor and Comptroller to advance a political agenda, members of the General Assembly cannot cut their own salaries on a mid-term basis to curry favor with voters,” the statement said. “It is our hope that the Circuit Court decision will be followed and the impacted legislators will be paid what they are due.”

Thoughts?

- Posted by Rich Miller        

56 Comments »
  1. - Tim - Monday, Jul 8, 19 @ 1:37 pm:

    A Cook County judge determined that the state needs to spend more money it doesn’t have? I’m stunned. I gotta lie down.

    Second, both Mike Madigan and John Cullerton have law degrees, right? Why is it such a big problem for two lawyers to write and/or pass laws that are constitutional? Where did they get their law degrees? Crackerjack box?


  2. - Perrid - Monday, Jul 8, 19 @ 1:41 pm:

    Tim, it’s amazing how you play both sides in the very same comment. On the one hand you are blaming a Cook county judge for demanding the Constitution be followed, and then you mock legislators for not following the Constitution.


  3. - Left of the Lake - Monday, Jul 8, 19 @ 1:43 pm:

    Wow!! Thats quite the rebuke from the Comptroller’s office.


  4. - OutOfState - Monday, Jul 8, 19 @ 1:47 pm:

    ===Why is it such a big problem for two lawyers to write and/or pass laws that are constitutional?===

    Let’s assume they realized this may be an issue. Do you expect them to fight with their caucuses to convince them to do something politically unpopular? I wouldn’t. Now, they get to let the courts figure it out without the political backlash involved in getting it right the first time.

    I do also want to say that it’s incredibly manipulative to do the politically expedient thing in the first place (vote against pay raises) then sue to get them back after you’re not a legislator.


  5. - Colin O'Scopy - Monday, Jul 8, 19 @ 1:48 pm:

    Comptroller Mendoza’s response is a bit overdone. I wonder how many legislative pay increases she voted against or turned back to the state when she was a member of the GA?


  6. - Oswego Willy - Monday, Jul 8, 19 @ 1:52 pm:

    If you’re a phony to the premise of “no budget, no pay”, and you ignore the constitution “because grandstanding”…

    … no matter how you think rhetorically it sounds, you’re on the wrong side.

    The quickest way I can remove who are serious and who are not in governing… is find out where they are in “no budget, no pay”.

    It’s a shame, those who waste talent… they know better… but pander because they… lack.


  7. - Oswego Willy - Monday, Jul 8, 19 @ 1:57 pm:

    Now, to the Post,

    ===People have long argued that the legislative furloughs (required unpaid days) approved by the General Assembly in years past and the legislature’s nearly annual ritual vote to deny themselves statutory cost of living increases (except this year) both violated that constitutional provision forbidding salary changes during their terms in office.===

    Any time legislators decide to make their pay, or COLA, or any type of payment political, they ignore the provision in the constitution not for legal reasons, but for political points.

    It’s confusing how there are two sides here, as the wise thing is to follow the constitution and law and never make pay or any aspect of pay… an issue.


  8. - Birds on the bat - Monday, Jul 8, 19 @ 2:01 pm:

    Mendoza’s act is getting real old. Isn’t her 15 minutes up? As noted, politicians can’t be trusted. Period. That’s why I’m a no vote on JB’s tax plan.


  9. - Rasselas - Monday, Jul 8, 19 @ 2:06 pm:

    They could avoid the constitutional issue by eliminating the automatic pay raise entirely. Then they would only get the pay raise when they have the guts to vote for it.

    Under current law, they were trying to have it both ways. One chamber would vote against, to create a record, and the other wouldn’t tackle it. Automatic pay raise intact.


  10. - Rich Miller - Monday, Jul 8, 19 @ 2:07 pm:

    ===That’s why I’m a no vote on JB’s tax plan===

    So, you’ll trust them not to raise the flat rate instead? lol


  11. - Lucky Pierre - Monday, Jul 8, 19 @ 2:13 pm:

    It is much harder for legislators to raise the flat tax, which should make it harder to pass the huge spending increases and pension can kicking JB is proposing.

    Everyone knows the 3% ruse is the camel’s nose under the tent.


  12. - Bourbon Street - Monday, Jul 8, 19 @ 2:15 pm:

    Ignoring Constitutional provisions in favor of political expediency is something the legislature should avoid like the Plague. Instead of engaging in ad hominem and hyperbolic attacks on Noland, Mendoza should understand and accept that we are a nation of laws and obey whatever lawful court order comes of this case.


  13. - Rich Miller - Monday, Jul 8, 19 @ 2:17 pm:

    ===which should make it harder to pass===

    You might think so, but if you put their backs against the wall, they’ll do it. And by killing the graduated income tax, that’s exactly what you’ll do.


  14. - Oswego Willy - Monday, Jul 8, 19 @ 2:19 pm:

    ===It is much harder for legislators to raise the flat tax===

    Meh.

    “We wanted to increase the taxes on 3% of Illinois taxpayers. With the amendment’s defeat, there are no other choices but to raise everyone’s”

    The cover, ironically, is the voters themselves.


  15. - Rich Miller - Monday, Jul 8, 19 @ 2:20 pm:

    ===The cover, ironically, is the voters themselves. ===

    Yep.


  16. - Lucky Pierre - Monday, Jul 8, 19 @ 2:22 pm:

    Don’t you think the graduated tax would have a much stronger leg to stand on if it voters also had a chance to amend the constitutional protection for pensions that is bankrupting the state and so many local governments?

    Now that Democrats control state government again completely, their professed “reasonable approach” for the past 4 years of a combination of cuts and revenues to fix Illinois budget is exposed as pure sophistry.


  17. - Anon-I-Guess - Monday, Jul 8, 19 @ 2:25 pm:

    Don’t govern by gimmick press releases. That is the message I take from this.


  18. - Rich Miller - Monday, Jul 8, 19 @ 2:26 pm:

    ===if it voters also had a chance===

    If the grass was blue the sky might be green.


  19. - Bigtwich - Monday, Jul 8, 19 @ 2:26 pm:

    Shouldn’t this be in the Court of Claims?


  20. - Rich Miller - Monday, Jul 8, 19 @ 2:28 pm:

    ===Shouldn’t this be in the Court of Claims? ===

    No. It’s a constitutional issue.


  21. - Oswego Willy - Monday, Jul 8, 19 @ 2:29 pm:

    ===…if it voters also had a chance to amend the constitutional protection for pensions that is bankrupting the state and so many local governments?===

    Put your 71 and 36 on the stairs, then get back to me.

    The graduated income tax got it, all alone.

    The rest of your lunacy is partisan cloud-yelling.


  22. - Norseman - Monday, Jul 8, 19 @ 2:32 pm:

    Shame on Mendoza for her political pandering. We get plenty of this phoniness from the GOP.


  23. - A Jack - Monday, Jul 8, 19 @ 2:41 pm:

    It wasn’t that difficult for the GA to raise the flat tax last time and even override Rauner’s veto. So how hard would it be now. So difficulty in raising the flat tax seems like a weak argument against the progressive tax.


  24. - Lucky Pierre - Monday, Jul 8, 19 @ 2:44 pm:

    Rest of my lunacy?

    Continuing to steer the Good Ship Illinois the same as its been done since the 1970’s by Speaker Madigan and his merry band of tax and spenders, and not acknowledging there is a giant hole in it is actual lunacy.

    The rating agencies don’t consider Illinois “math problem” to be partisan cloud yelling.


  25. - Jocko - Monday, Jul 8, 19 @ 2:47 pm:

    ==voters also had a chance to amend the constitutional protection for pensions==

    So you (and your brethren) can anonymously give public servants the shaft? How big of you.


  26. - Anonymous - Monday, Jul 8, 19 @ 2:53 pm:

    Could this have the effect of increasing legislative pensions?


  27. - Lucky Pierre - Monday, Jul 8, 19 @ 2:53 pm:

    Jocko, who exactly is getting shaft in Illinois again?

    It wasn’t that difficult?

    A Jack, it It took 2 1/2 years to pass the last income tax hike and every Republican legislator that voted for it decided not to run for reelection.


  28. - Rich Miller - Monday, Jul 8, 19 @ 2:54 pm:

    ===every Republican legislator that voted for it decided not to run for reelection===

    Wrong.


  29. - Bourbon Street - Monday, Jul 8, 19 @ 2:59 pm:

    @A Jack, Illinois went without a budget for 793 days, so yes, it was that difficult. Also, let us not forget that the voters overwhelmingly voted in Pritzker knowing that he was supporting a graduated income tax. Whether 60% of the voters will approve the amendment remains to be seen, but raising the flat tax is never an easy feat. Even if it were, there’s always the issue of what constitutes a fair tax system.


  30. - Jocko - Monday, Jul 8, 19 @ 3:08 pm:

    ==who exactly is getting shaft in Illinois again?==

    I’m sorry if you’re fuming that 67% voted against you in 2008. The good news is that you have nine years to drum up support for another con-con.


  31. - Birds on the bat - Monday, Jul 8, 19 @ 3:12 pm:

    You might think so, but if you put their backs against the wall, they’ll do it. And by killing the graduated income tax, that’s exactly what you’ll do.

    So be it. The voters already did their job by putting these folks in office. The GA and Governor should own this, not the voters.


  32. - Oswego Willy - Monday, Jul 8, 19 @ 3:13 pm:

    ===Rest of my lunacy?===

    Oh good, you read it right. I was afraid you’d misread it.

    Read what I wrote, exactly as I wrote it.

    ===The rest of your lunacy is partisan cloud-yelling.===

    Then you decide…

    ===…1970’s by Speaker Madigan and his merry band of tax and spenders===

    … ignoring Republican governors Thompson, Edgar, Ryan, Speaker Daniels, President Philip…

    The raters don’t care about party, unlike you.

    The raters care about… themselves, the cost of borrowing money… and it’s return on investment.

    Yep. Lunacy. Partisan lunacy.

    We can discuss your blatant use of “wrong facts” next, if you prefer, lol


  33. - Bigtwich - Monday, Jul 8, 19 @ 3:31 pm:

    ===Shouldn’t this be in the Court of Claims? ===

    ==No. It’s a constitutional issue.==

    Does the Comptroller, even with a
    writ of Mandamus in hand, have authority to pay out of prior year budgets?


  34. - Three Dimensional Checkers - Monday, Jul 8, 19 @ 3:31 pm:

    I don’t know if Judge Valderrama’s opinion is wrong, but I believe the con-con delegates believed they were prohibiting the General Assembly from increasing their pay in session. It is ironic how people use the provision to protect pay raises for the General Assembly now.


  35. - sharkette - Monday, Jul 8, 19 @ 3:34 pm:

    Cantroller should focus on reducing her checkbooks, aka the 800 funds she pays out of.
    And where the monies are coming in from.


  36. - sharkette - Monday, Jul 8, 19 @ 3:39 pm:

    All peoples owed millions of dollars should be paid in order of the vendors invoice date, not how the Cantroller “feels” today.
    Everyone needs to be paid what they are owed


  37. - RNUG - Monday, Jul 8, 19 @ 3:45 pm:

    == Could this have the effect of increasing legislative pensions? ==

    It will a bit.


  38. - oh? - Monday, Jul 8, 19 @ 4:02 pm:

    Lp….when are you going to stop howling at the moon? A constitutional amendment can not and will not alter current pension obligations. This has been explained infinitum on this blog. You can advocate for no pensions on new hires if you like…that would be legal. Good luck getting quality helo. In the mean time how about no bait and switch tactics?


  39. - Annonin' - Monday, Jul 8, 19 @ 4:05 pm:

    Capt. Fax should get the Comptroller’s audio from Rick Pearson’s show…even more strident.
    Practically no one the furlough ideas would hold up, but someone had to sue.
    What oh what would the new pension clause say folks…both the IL Supreme Court and the federal constitution pretty clearly state workers get what expected when signing up — not less.


  40. - The Doc - Monday, Jul 8, 19 @ 4:10 pm:

    ==The voters already did their job by putting these folks in office. The GA and Governor should own this, not the voters==

    Say what now?


  41. - Oswego Willy - Monday, Jul 8, 19 @ 4:12 pm:

    ===The voters already did their job by putting these folks in office. The GA and Governor should own this, not the voters.===

    Yeah?… no?… No.

    Nope. The amendment’s outcome is solely on the voters.

    That’s the ball game now.


  42. - sharkette - Monday, Jul 8, 19 @ 4:29 pm:

    paying GRF invoice today 6 months old and not paying 3 and 4 year old invoices is a very poor fiscal decisions o the Cantroller has made based on the legislators nor courts requiring her to pay those 3rd parties final interest payments, while she still blames rauner, at every dead horse opportunity and yet she racks up massive debt by not paying all owed in a fifo fassion


  43. - Steve - Monday, Jul 8, 19 @ 4:35 pm:

    Taxes of all sorts are going to have to go up because not enough people want to change the constitution to reform pensions. It’s that simple.


  44. - Whatever - Monday, Jul 8, 19 @ 4:44 pm:

    ==Taxes of all sorts are going to have to go up because not enough people want to change the constitution to reform pensions. It’s that simple.==

    Pensions have been reformed. It’s called Tier 2, and it goes back years now. The pensions that have already been earned (that is, 100% of the $130-something billion underfunding) cannot be avoided without repealing the federal and state contracts clauses. It really is that simple.


  45. - Oswego Willy - Monday, Jul 8, 19 @ 4:44 pm:

    ===because not enough people want to change the constitution to reform pensions. It’s that simple.===

    … except for your cluelessness and willful ignorance, continued even, that changing the constitution solves the current problem. It doesn’t.


  46. - Steve - Monday, Jul 8, 19 @ 5:04 pm:

    Allowing the COLA to be adjusted via a constitutional change would help a lot. Capping pensions at a certain level would also help. But, raising taxes is much , much easier.


  47. - Oswego Willy - Monday, Jul 8, 19 @ 5:07 pm:

    ===Allowing the COLA to be adjusted via a constitutional change would help a lot. Capping pensions at a certain level would also help.===

    … not what is already owed, or what is promised thru the contract clause.

    Keep trying, it’s fun watching you flail about, lol


  48. - Jibba - Monday, Jul 8, 19 @ 5:36 pm:

    –Allowing the COLA to be adjusted via a constitutional change would help a lot. Capping pensions at a certain level would also help. But, raising taxes is much , much easier.—

    Neither of those things are legal under current law or even if the constitution is changed due to state and federal contract law. The “COLA” is an automatic annual increase (AAI) is part of their contract and employees have already paid their part in every paycheck. It is not some kind of gift that can simply be withheld.


  49. - Steve - Monday, Jul 8, 19 @ 6:10 pm:

    If the pension funds become empty, pensioners do become creditors sort of like vendors owed money by the state of Illinois.


  50. - Oswego Willy - Monday, Jul 8, 19 @ 6:13 pm:

    ===If===

    Has anyone missed a pension payment yet?

    Check on that, let me know what you find.


  51. - Jibba - Monday, Jul 8, 19 @ 6:23 pm:

    ==pensioners do become creditors sort of like vendors===

    Is that a question or statement? Not relevant either way, since it has never happened. But I would anticipate that, should the fever dream of bankruptcy ever become legal, every asset of the state would go to the pension funds and other creditors. Just imagine the tax increase needed to rent every building back. So no matter how it goes, taxes will go up to support the contracted obligations of the state.


  52. - RNUG - Monday, Jul 8, 19 @ 6:58 pm:

    == If the pension funds become empty, pensioners do become creditors sort of like vendors owed money by the state of Illinois. ==

    Given the continuing appropriations for pensions just like bonds, and the various court decisions both before and after the 1970 pension clause approval, the odds are high bonds and pensions would paid before anyone else.


  53. - RNUG - Monday, Jul 8, 19 @ 7:04 pm:

    == If the pension funds become empty, pensioners do become creditors sort of like vendors owed money by the state of Illinois. ==

    Study some of the pre-1970 pension cases when the pensions were just a grant (legally a gift) by the State. Even without protection from the State Constitution, the courts usually ruled in favor of the retirees.

    If you want specific case citations, read Eric Madiar’s Welching analysis.


  54. - anon2 - Monday, Jul 8, 19 @ 7:51 pm:

    Is it OK to violate the constitution when the victims are an unpopular minority group (politicians)?
    Judge Noland is right about the law, yet he is the target of personal attack. Again, it seems that the law is on the side of the unpopular group, so other pols resort to attacking motives.


  55. - anon2 - Monday, Jul 8, 19 @ 7:55 pm:

    === Check on that, let me know what you find. ===

    Have you checked on the funding level of the smallest state pension fund, GARS? It’s below 15 percent. If Judge Noland sues someday because his pension isn’t paying, he will be attacked as unreasonable and greedy then, too.


  56. - anon2 - Monday, Jul 8, 19 @ 8:00 pm:

    === Noland’s legislative pension, combined with his new judicial salary and pension, should more than suffice. ===
    Upholding the constitution is a duty of State elected officials. Including the comptroller. Their judgment about whether someone’s salary and pension “should suffice” does not trump the law.


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